IMAGE: (L-R) Professor of practice at Syracuse University College of Law David Crane, United Nations Representative from France Gerard Araud, and forensic pathologist Dr. Stuart Hamilton give a report on allegations of torture in Syria at the United Nations on April 15, 2014 in New York City. About 55,000 pictures were taken of victims during the Syrian civil war, which by that point had claimed the lives of about 150,000 people. (Photo by Michael Loccisano/Getty Images)
The Netherlands announced on Sept. 18 that it had notified Syria of its intention to hold that government accountable for torture under the United Nations Convention against Torture. The Syrian government responded by saying the Netherlands had no right to address human rights, and that its action “exceed[s] the UN and international law.”
The Dutch correspondence is an important step that could eventually lead to proceedings against Syria at the International Court of Justice (ICJ). This effort may prove to be yet another break in the concerted blockage on international accountability for crimes committed in Syria.
As the Dutch foreign affairs minister, Stef Blok, explained, “The Assad regime has committed horrific crimes time after time. The evidence is overwhelming.” Among others, the U.N. Commission of Inquiry on Syria and Human Rights Watch, where one of us works, have documented the rampant use of torture in official and makeshift state-run detention facilities. According to the Syrian Network for Human Rights, more than 12,000 people have died under torture in Syrian prisons, where physical and psychological torture methods range from waterboarding and rape to being set on fire and being thrown into cells with the corpses of deceased detainees.
The evidence of systematic and widespread use of torture in at least 27 detention facilities in Syria points to a State policy that could implicate high-ranking members of the Syrian government. Reports indicate that top Syrian security officials have authorized the “harsh” treatment of certain detainees and crackdowns in detention.
While the evidence of State-led atrocity crimes has been accumulating, justice for the abuses has been limited. Universal jurisdiction cases addressing individual criminal responsibility in foreign courts have gained traction, but are insufficient on their own to address the scope of the criminality documented in Syria over the last decade. One such landmark trial began in Germany in April against two people alleged to be former Syrian intelligence officials charged with crimes against humanity charges. German prosecutors accuse one of the suspects of overseeing the torture of detainees between 2011 and 2012 at a facility in Damascus. The German case serves as an important reminder that much more is needed to ensure accountability for the Syrian conflict’s horrific atrocities.
Other more comprehensive international accountability efforts have been thwarted for years. Russia and China in 2014 vetoed a United Nations Security Council resolution that would have given the International Criminal Court (ICC) a mandate in Syria. In 2019, Moscow said it would block the Security Council from referring further situations to the ICC or creating any new criminal tribunals such as those set up for Rwanda or the former Yugoslavia. An ICJ case would mark the first move by another sovereign State to hold Syria accountable on the basis of State responsibility.
Syria can be brought before the ICJ under the Convention against Torture because it is a party to the Convention and Article 30(1) provides for the ICJ’s jurisdiction to settle disputes. States can opt out of Article 30 jurisdiction, but Syria has not entered a reservation doing so. States parties to the treaty, including the Netherlands, may bring suit against Syria even when they have not been specially affected by the alleged violations.
As the ICJ explicitly recognized in Belgium v. Senegal—the only case brought under the Convention against Torture to date—the convention generates erga omnes obligations. Each State party has obligations to other States parties to comply with the treaty given the “common interest” in meeting the “high purposes which are the raison d’être of the Convention.”
But before the Netherlands can formally initiate ICJ proceedings, it must meet the jurisdictional requirements of Article 30(1) of the Convention against Torture: (i) a “dispute” must exist concerning the treaty’s “interpretation or application”; (ii) the dispute “cannot be settled through negotiations”; and (iii) the parties cannot agree on arbitration within six months of a request for arbitration. Under the first prong, for there to be a “dispute” in the parlance of the ICJ, the State party bringing suit must demonstrate that “the claim of one party is positively opposed by the other.” The denial of allegations may be sufficient to establish such opposition.
The “negotiations” required under the second prong of Article 30(1) can be triggered by diplomatic notes like the one the Netherlands sent to Syria. The negotiation requirement entails “a genuine attempt by one of the disputing parties to engage in discussions with the other disputing party, with a view to resolving the dispute.” As the ICJ recently stated in Ukraine v. Russia, such a precondition can be met when there has been a “failure of negotiations, or when negotiations have become futile or deadlocked.”
In Belgium v. Senegal, the ICJ found that this requirement had been met after “[s]everal exchanges of correspondence and various meetings” in which Belgium explicitly invoked Article 30 and Senegal asserted that it was complying with its obligations. It observed that “[t]here was no change in the respective positions of the Parties” and “[t]he fact that, as results from the pleadings of the Parties, their basic positions have not subsequently evolved confirms that negotiations did not and could not lead to the settlement of the dispute.”
If negotiations with Syria prove ineffective, the Netherlands must then satisfy the third prong on arbitration. Dutch authorities can formally refer the dispute to the ICJ only if the disputing parties are unable to agree on a genuine arbitration process within six months of a request.
A fulsome analysis of potential claims on the merits under the Convention against Torture goes beyond the scope of this post, but in brief, there may be claims arising from Syria’s failure to prevent and investigate credible torture allegations; prosecute or extradite suspects; and provide adequate redress to victims.
For years, the evidence of gross human rights violations in Syria has been mounting, with no sign of the government policy and practice of torture slowing down or reforming. The stakes couldn’t be higher. Since the start of the conflict, Syrian authorities have detained tens of thousands, and the ongoing Covid-19 pandemic has left detainees even more vulnerable.
The Netherlands’ diplomatic note may mark the first step toward urgently needed accountability. Other governments should publicly welcome this principled action, consider joining the Dutch in their effort, and explore similar ways to assert the rule of law.
(The views expressed are solely those of the authors and do not necessarily reflect those of any organizations with which they may be affiliated.)
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